MATHEWS, Circuit Judge.
The M and M Wood Working Company, an Oregon corporation (hereafter called the Company),1 *and Plywood & Veneer Workers’ Union, Local No. 2531, a labor organization (hereafter called Local No. 2531),2 have petitioned this court to review and set aside an order of the National Labor Relations Board dated April 1, 1938, requiring the Company to cease and desist from certain practices in which the Board found the Company had engaged and was engaging, and which the Board held were unfair labor practices, within the meaning of § 8 of the National Labor Relations Act, 49 Stat. 452, 29 U.S.C.A. § 158.
The question is whether the Board’s findings are supported by evidence.
The Board found that the Company had interfered with, restrained and coerced and, at the time of the order, was interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in § 7 of the Act, 29 U.S.C.A. § 157, and thus had engaged and was engaging in unfair labor practices, within the meaning of § 8 (1) of the Act; and that, by discrimination in regard to hire and tenure of employment, the Company had encouraged and, at the time of the order, was encouraging membership in Local No. 2531, had discouraged and was discouraging membership in Plywood & Veneer Workers’ Union, Local No. 102, a labor organization (hereafter called Local No. 102),3 *and thus had engaged and was engaging in unfair labor practices, within the meaning of § 8 (3) of the Act. These are the practices from which the Board ordered the Company to cease and desist.
Section 7 of the Act provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.”
Section 8 of the Act provides: “It shall be an unfair labor practice for an employer—
“(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title],
Jjí sfc sfc
“(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act [chapter], * * * or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act [chapter] as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9(a) [section 159(a) of this title], in the appropriate collective bargaining unit covered by such agreement when made.”
Section 9(a) of the Act, 29 U.S.C.A. § 159(a), provides: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay; wages, hours of employment, or other conditions of employment * * *.”
[940]*940There is no evidence that the Company ever interfered with, restrained or coerced any employee in the exercise of any right guaranteed in § 7 of the Act. Hence, the Board’s finding that the Company had engaged and was engaging in unfair labor practices, within the meaning of § 8 (1) of the Act, is not supported by evidence.
There is no evidence that the Company ever discriminated in regard to hire or tenure of employment, except in pursuance of and in conformity with a closed shop agreement which it made with Local' No. 2531 on, or as of, May 3, 1937. Pertinent portions of the agreement were as follows:
“The parties to this agreement are the Plylock. Corporation,4 hereinafter known as the Company, and Plywood & Veneer Workers’ Union No. 2531, affiliated with the United Brotherhood of Carpenters and Joiners, hereinafter known as the Union.
“The Company recognizes the fact that all its employees are members of the Union. The Company recognizes the Union as representing, for the purpose of collective bargining, all of its employees except those acting as shift foreman and in the plant office and not paid on an hourly basis not at present in the Union, or any replacement of such personnel. It is the desire of the parties hereto that the employees covered by this agreement shall maintain membership in good standing in the Union. In order that this desire may be effectuated, and in order that the Union may discipline its members for the effective operation of this agreement, the Company agrees to release from its employ any person who fails or refuses to maintain membership in good standing in the Union.” * * *
“The Company agrees to give preference to members of the Union in all employment tyhich may be made available whenever a new job becomes available. Should a vacancy occur after the list of Union members has been exhausted, the Company will notify the Union and the latter shall send an employee competent and qualified to perform the work required ; it being understood that such new employee must be satisfactory to the Company. In the event that the Union is unable to furnish satisfactory, reasonably competent and qualified help then the Company shall be free to obtain workmen in any manner it sees fit.
“It is understood, however, that in the latter eventuality, such employee shall secure a temporary working card from the Union. If the Union deems such person suitable as a prospective member of the Union, such person shall within „thirty (30) days after his employment become a member of the Union. If such person is found unsuitable for Union membership the Company agrees tp release him from employment. * * * ”
“The duration of this agreement shall be from May 3rd, 1937 to March 1st, 1938. * * * ”
I
There is no finding, nor any evidence which would have warranted a finding, that the union (Local No. 2531) mentioned in the agreement was established, maintained or assisted by any action defined in the Act as an unfair labor practice. That this union was the representative of the Company’s employees, as provided in § 9 (a) of the Act, in the proper bargaining unit covered by the agreement when made, is conceded. Thus, it is seen, the agreement was in conformity with § 8 (3) of the Act and was a lawful and proper agreement.
While the agreement was in _ force ■ — from May 3, 1937, to March 1, 1938— the Company complied with it. In that way and to that extent only, it discriminated in favor of those who were, and against those who were not, members of Local No. 2531. If thereby it encouraged membership in Local No. 2531 or discouraged membership in Local No. 102, such encouragement or discouragement did not constitute an unfair labor practice, within the meaning of § 8 (3) of the Act.
The Board found .that on September 12, 1937, the union (Local No.
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MATHEWS, Circuit Judge.
The M and M Wood Working Company, an Oregon corporation (hereafter called the Company),1 *and Plywood & Veneer Workers’ Union, Local No. 2531, a labor organization (hereafter called Local No. 2531),2 have petitioned this court to review and set aside an order of the National Labor Relations Board dated April 1, 1938, requiring the Company to cease and desist from certain practices in which the Board found the Company had engaged and was engaging, and which the Board held were unfair labor practices, within the meaning of § 8 of the National Labor Relations Act, 49 Stat. 452, 29 U.S.C.A. § 158.
The question is whether the Board’s findings are supported by evidence.
The Board found that the Company had interfered with, restrained and coerced and, at the time of the order, was interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in § 7 of the Act, 29 U.S.C.A. § 157, and thus had engaged and was engaging in unfair labor practices, within the meaning of § 8 (1) of the Act; and that, by discrimination in regard to hire and tenure of employment, the Company had encouraged and, at the time of the order, was encouraging membership in Local No. 2531, had discouraged and was discouraging membership in Plywood & Veneer Workers’ Union, Local No. 102, a labor organization (hereafter called Local No. 102),3 *and thus had engaged and was engaging in unfair labor practices, within the meaning of § 8 (3) of the Act. These are the practices from which the Board ordered the Company to cease and desist.
Section 7 of the Act provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.”
Section 8 of the Act provides: “It shall be an unfair labor practice for an employer—
“(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title],
Jjí sfc sfc
“(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act [chapter], * * * or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act [chapter] as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9(a) [section 159(a) of this title], in the appropriate collective bargaining unit covered by such agreement when made.”
Section 9(a) of the Act, 29 U.S.C.A. § 159(a), provides: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay; wages, hours of employment, or other conditions of employment * * *.”
[940]*940There is no evidence that the Company ever interfered with, restrained or coerced any employee in the exercise of any right guaranteed in § 7 of the Act. Hence, the Board’s finding that the Company had engaged and was engaging in unfair labor practices, within the meaning of § 8 (1) of the Act, is not supported by evidence.
There is no evidence that the Company ever discriminated in regard to hire or tenure of employment, except in pursuance of and in conformity with a closed shop agreement which it made with Local' No. 2531 on, or as of, May 3, 1937. Pertinent portions of the agreement were as follows:
“The parties to this agreement are the Plylock. Corporation,4 hereinafter known as the Company, and Plywood & Veneer Workers’ Union No. 2531, affiliated with the United Brotherhood of Carpenters and Joiners, hereinafter known as the Union.
“The Company recognizes the fact that all its employees are members of the Union. The Company recognizes the Union as representing, for the purpose of collective bargining, all of its employees except those acting as shift foreman and in the plant office and not paid on an hourly basis not at present in the Union, or any replacement of such personnel. It is the desire of the parties hereto that the employees covered by this agreement shall maintain membership in good standing in the Union. In order that this desire may be effectuated, and in order that the Union may discipline its members for the effective operation of this agreement, the Company agrees to release from its employ any person who fails or refuses to maintain membership in good standing in the Union.” * * *
“The Company agrees to give preference to members of the Union in all employment tyhich may be made available whenever a new job becomes available. Should a vacancy occur after the list of Union members has been exhausted, the Company will notify the Union and the latter shall send an employee competent and qualified to perform the work required ; it being understood that such new employee must be satisfactory to the Company. In the event that the Union is unable to furnish satisfactory, reasonably competent and qualified help then the Company shall be free to obtain workmen in any manner it sees fit.
“It is understood, however, that in the latter eventuality, such employee shall secure a temporary working card from the Union. If the Union deems such person suitable as a prospective member of the Union, such person shall within „thirty (30) days after his employment become a member of the Union. If such person is found unsuitable for Union membership the Company agrees tp release him from employment. * * * ”
“The duration of this agreement shall be from May 3rd, 1937 to March 1st, 1938. * * * ”
I
There is no finding, nor any evidence which would have warranted a finding, that the union (Local No. 2531) mentioned in the agreement was established, maintained or assisted by any action defined in the Act as an unfair labor practice. That this union was the representative of the Company’s employees, as provided in § 9 (a) of the Act, in the proper bargaining unit covered by the agreement when made, is conceded. Thus, it is seen, the agreement was in conformity with § 8 (3) of the Act and was a lawful and proper agreement.
While the agreement was in _ force ■ — from May 3, 1937, to March 1, 1938— the Company complied with it. In that way and to that extent only, it discriminated in favor of those who were, and against those who were not, members of Local No. 2531. If thereby it encouraged membership in Local No. 2531 or discouraged membership in Local No. 102, such encouragement or discouragement did not constitute an unfair labor practice, within the meaning of § 8 (3) of the Act.
The Board found .that on September 12, 1937, the union (Local No. 2531) mentioned in the agreement withdrew from and severed its affiliation with the United Brotherhood of Carpenters and Joiners of America (hereafter called the Brotherhood), and became Local No. 102, affiliated with the International Woodworkers of America (hereafter called the International) ; that thereupon Local No. 102 succeeded to the rights of the union mentioned in the agreement, or else the agreement was thereby terminated and was no longer in force; that on September 27, 1938, a [941]*941new Local No. 2531 was organized; that, although it had the same name and number, the new local was not the union mentioned in the agreement; that the Company had discriminated and was discriminating in favor of the new local’s members; and that such discrimination was not in pursuance of or in conformity with the agreement.
These findings are not supported by evidence. On the contrary, the evidence establishes, without conflict, the following facts:
Local No. 2531 was organized on or prior to April 11, 1935. On or about that date it applied for and obtained a charter from the Brotherhood. Then, as now, Article I of its constitution provided: “This organization shall be known as the Plywood & Veneer Workers’ Union Local No. 2531 and shall be affiliated with the United Brotherhood of Carpenters and Joiners of America.” Hence, for Local No. 2531 to withdraw from or sever its affiliation with the Brotherhood would have required an amendment to its. constitution. Article XI of its constitution provided: “This Constitution may be amended by a two-thirds vote of the members present at any regular meeting, providing the amendment has been presented in writing and filed with the secretary two weeks prior to the meeting at which the vote is taken.” There is no evidence that any amendment to the constitution of Local No. 2531 was ever presented, filed, voted on or adopted.
In accepting its charter, Local No. 2531 agreed to conform to the Brotherhood’s rules and regulations,5 one of which (General Laws, § 25) provided: “A local Union cannot withdraw from the United Brotherhood or dissolve so long as ten members in good standing object thereto. * * * ” Thus, even though a withdrawal amendment had been presented and filed and had been voted for by two-thirds of the members, still, if ten members had objected, the amendment would have been defeated. Since, however, no such amendment was ever presented, filed or voted on, we need not consider what number of votes would have been necessary to adopt it. It suffices to say that no such amendment was adopted, and that, therefore, Local No. 2531 never withdrew from or severed its affiliation with the Brotherhood. Much less did it become Local No. 102, affiliated with the International.
On or about September 12, 1937, a majority of the members, including all the officers, of Local No. 2531 withdrew from that local and’ organized Local No. 102, a wholly new and previously non-existent organization. Assuming, apparently, that by their withdrawal they had dissolved Local No. 2531, the officers returned its charter to the Brotherhood. The assumption was baseless. Local No. 2531 had 39 members who did not withdraw from it and did not join Local No. 102. Thus, it is seen, there were more than ten members who never consented to a dissolution of Local No. 2531. Nor did the Brotherhood ■ — of which Local No. 2531 was a unit— consent to such dissolution. Instead, it returned the charter and, on or about September 27, 1937, new officers were elected to succeed those who had withdrawn.
The Board speaks of this election as a “reorganization” and assumes that thereby a new organization was created. The assumption is erroneous. Local No. 2531 mentioned in the charter, Local No. 2531 mentioned in the agreement, and Local No. 2531 mentioned in the Board’s order are one and the same organization. There was and is no new Local No. 2531.
On or shortly after September 12, 1937, Local No. 102 demanded that the Company give employment to its members, notwithstanding their failure and refusal to maintain membership in Local No. 2531. Thus, in effect, Local No. 102 demanded that the Company violate the agreement of May 3, 1937. Local No. 2531 demanded that the Company continue to comply with the agreement. The Company did so continue. Thereupon Local No. 102 filed charges with the Board, and the Board issued its complaint against the Company. Local No. 2531 was permitted to intervene. After hearings before a trial examiner and before the Board in January, 1938, the Board on April 1, 1938, made the order now under review.
Meanwhile, on March 1, 1938, the agreement had expired, and all discrimination by the Company in favor of the mem[942]*942bers of Local Nó. 2531 had ceased.6 The Board’s finding that such discrimination was being practiced at the time of the order is, admittedly, contrary to the fact.
Being based on findings which are not supported by evidence, the Board’s order must be, and it is hereby, set aside.